Posts tagged ‘Limitation Period’

It is a fundamental principle of Family Law litigation – indeed, in all litigation – that a party’s court documents and pleadings must be accurate and comprehensive, and must fully define the basis on which various legal rights are being asserted. Whether parties are self-represented or have the assistance of lawyers, those court documents will define and often limit the remedies that a litigant is entitled to pursue.

A case decided last week provides a handy illustration of this very basic principle.

In this case the woman and man had started their relationship in 1993, and lived together in a home owned by the man. They legally separated in 2008, though they continued to live under the same roof. The man eventually moved out, however. The woman then asked the court for a declaration that she owned a 50% interest in the property, even though it was registered solely in the man’s name. Her claim was based on a claim for “constructive trust” and “unjust enrichment” (which are legal notions designed to remedy situations such as this one, where one partner claims to have invested time, money and effort into improving a property owned solely by the other).

She was asking for summary judgment on these issues, which would grant her the requested relief without having to embark on a full trial.

The man defended the woman’s claim for unjust enrichment on the basis that she was out of time. The woman’s claim was subject to the two-year deadline (or “limitation period”) set out in the provincial Limitations Act, 2002. The woman’s claim had been commenced too late, he said.

In opposition to that, the woman claimed that the 10-year limitation period under the Real Property Limitations Act applied; alternatively, she claimed that there was no deadline at all because her claim was based in equitable principles to which no limitation period applies.

Essentially, the court found that these arguments were premature; a basic litigation principle had been overlooked.

The problem was this: The wife had not actually amended her written court documents to reflect her claim for unjust enrichment, even though she had previously been granted the court’s permission to do so. To this situation the court remarked: “…it would be dangerous, if not impossible, to grant summary judgment on a claim that has not yet actually been pleaded.”

Secondly, the wife’s court documents also did not contain any reference to her limitation period defence at all. The court likewise pointed out that to succeed at trial, the person making the claim must actually plead the defenses on which he or she plans to rely. The court said: “In my view, it would be illogical if a respondent could obtain judgment in a summary fashion on a defence that he could not succeed upon after a full trial because of a failure to plead the same.“

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

Wife in State of “Blameless Ignorance”; Eight-year Delay in Seeking Rights Excused

A recent case before the Ontario court involved two separated spouses who were very lax about unwinding their legal and financial affairs. The court had to determine whether the wife had run out of time for doing so.

The husband and wife were married in 1971, and had four children. The wife left the matrimonial home around 2000, but did not start proceedings for spousal support and division of family property until eight years later, in 2008. Despite being properly served with the court materials, the husband did not defend the proceedings whatsoever. The court eventually awarded the wife her spousal support entitlement in 2011.

However, the question of the division of net family property remained a live issue. Unbeknownst to the wife, she had a time-limit: under s. 7(3) of the Family Law Act, the deadline for her to bring an application for division of net family property expired in 2006, being six years after the 2000 separation. The wife brought a motion to extend the time for taking that step. Once again, the husband did not appear or file any materials on that motion.

The question before the court was whether it should extend the wife’s deadline; the court had the power to do under s. 2(8) of the Family Law Act, provided that the three tests specified in that legislation were met. The tests were whether:

1) there are apparent grounds for relief;

2) the wife’s delay was incurred in good faith; and

3) the husband would suffer no substantial prejudice because of the wife’s delay.

As a preliminary point – and despite some quibbling by the parties on the issue – the court confirmed that the separation date, being the point after which there was no reasonable prospect of reconciliation, could be pegged as July 1, 2000. Two isolated occasions on which the parties had sexual intercourse, occurring in 2006 and 2009, did not amount to a “reconciliation”. Therefore, the six-year limitation period had indeed expired by 2008.

Next, applying the first element of the three-prong test, the court found there were “strong grounds” in this case for allowing the wife to continue with her application, even if the limitation period had technically expired.

Specifically, the wife had a good legal claim for equalization of family assets; she had merely left it too long before claiming for it. Also, this was a long-term marriage that produced four children, and the wife had left the matrimonial home in 2000 with only the clothes on her back in order to escape the husband’s abuse and alcoholism, which was causing her to become depressed. Finally, the court considered the fact that the husband did not respond to either the application, or to the motion to extend time.

The first branch of the test was accordingly met.

Next, the second branch was satisfied as well: the court found that the wife at all times had acted honestly, and with no ulterior motive. The court found that she was in a state of “blameless ignorance”, and had never sought legal advice in the eight years since separating from the husband.

Finally, the court considered the third question, of whether the husband had suffered prejudice. In this case the only real asset that was potentially affected by the wife’s delay was the husband’s pension. However, according to the law, its value was to be determined and set on the date of the separation, not after. Therefore, no matter how long the wife delayed in bringing her application, the pension value was determined as of July 1, 2000 and was completely unaffected by the passage of time. The court also considered the husband’s failure to respond to any of the court materials as being reflective of the lack of prejudice to him.

As a result, the court found the three-pronged test for granting an extension had been met, and allowed the wife to continue her application for division of net family property.

On the facts of this particular case, the court showed tolerance of the wife’s delay in seeking her rights after separation. However, deadlines are normally very strict and it can be costly to go to court to try to get them extended. Our lawyers and staff at Russell Alexander, Family Lawyers can provide timely advice and to your individual rights, and how and when to pursue them. For more information, visit us at www.RussellAlexander.com

For the full-text of the decision, see Duncan v. Duncan, 2011 ONSC 2078 http://bit.ly/j3cbKT